Lame-duck suits could be costly

Fil­ings chal­lenge bills passed by GOP curb­ing power of gov­er­nor, AG

Milwaukee Journal Sentinel - - Front Page - Pa­trick Mar­ley

“It’s go­ing to be chaos.” Jeremy Levin­son, Mil­wau­kee at­tor­ney who of­ten rep­re­sents Democrats

MADI­SON – The start of the new leg­isla­tive ses­sion may take place in the court­house as much as the state­house.

The le­gal bills will start pil­ing up soon.

Lit­i­ga­tion has started on two fronts over the De­cem­ber lame-duck leg­isla­tive ses­sion that re­sulted in laws cur­tail­ing early vot­ing and lim­it­ing the pow­ers of the gov­er­nor and at­tor­ney gen­eral.

Sep­a­rately, a state rep­re­sen­ta­tive has asked the Dane County district at­tor­ney to bring a third law­suit to in­val­i­date the lame-duck laws. He missed votes on the laws, he says, be­cause Assem­bly lead­ers did not make ac­com­mo­da­tions for his dis­abil­ity when they con­vened at 4:30 a.m.

Mean­while, a fight could de­velop over the stance Wis­con­sin takes in a multi-state law­suit over the Af­ford­able Care Act, known widely as Oba­macare. Repub­li­cans and Democrats have dis­agreed over who de­ter­mines how that law­suit is con­ducted.

And a long-run­ning law­suit over Wis­con­sin’s elec­tion maps could go to trial as early as April. Assem­bly Repub­li­cans re­cently reached a deal to pay a Chicago law firm up to $850,000 for work on that case.

GOP Assem­bly Speaker Robin Vos of Rochester has said the Leg­is­la­ture would likely in­ter­vene in at least some of the other cases. That would in­volve hir­ing more pri­vate at­tor­neys at tax­payer ex­pense.

The on­slaught of lit­i­ga­tion isn’t new. Groups aligned with Democrats have brought a slew of law­suits in re­cent years to chal­lenge mea­sures passed by Repub­li­cans re­gard­ing unions, voter ID and abor­tion.

But the en­vi­ron­ment for lit­i­ga­tion is dif­fer­ent now. The lame-duck laws gave leg­is­la­tors the power to more eas­ily in­ter­vene in cases with their own lawyers. Law­mak­ers could bring their own at­tor­neys into cases even as lit­i­gants chal-

lenge the va­lid­ity of the law that gives them the abil­ity to hire out­side at­tor­neys.

“It’s go­ing to be chaos,” said Jeremy Levin­son, a Mil­wau­kee at­tor­ney who of­ten rep­re­sents Democrats.

The pro­vi­sion on in­ter­ven­ing in law­suits is “both go­ing to be lit­i­gated it­self and cre­ate a lot of con­fu­sion,” he said, adding that would be costly.

Josh Kaul, the state’s new Demo­cratic at­tor­ney gen­eral, has de­cried the lame-duck laws and ques­tioned their va­lid­ity. He’s now in charge of de­cid­ing how to re­spond to the lat­est lame-duck law­suit.

Rick Esen­berg, pres­i­dent of the con­ser­va­tive Wis­con­sin In­sti­tute for Law & Lib­erty, said Kaul is duty-bound to de­fend the lame-duck laws.

“If At­tor­ney Gen­eral Josh Kaul does not de­fend the laws passed in the lame-duck ses­sion that would be ex­tra­or­di­nary, be­cause there is an al­most cer­tainly cor­rect ar­gu­ment that the laws that were passed are con­sti­tu­tional,” Esen­berg said in a state­ment.

If Kaul de­clined to de­fend the laws, that could lead to pri­vate at­tor­neys be­ing hired to do the work at tax­payer ex­pense.

Voter ID, early vot­ing

One of the lame-duck laws in­cluded a pro­vi­sion lim­it­ing early vot­ing to two weeks. Oth­ers barred peo­ple from us­ing ex­pired col­lege IDs to vote and short­ened the pe­riod that tem­po­rary vot­ing cre­den­tials are valid for peo­ple who have dif­fi­culty get­ting per­ma­nent IDs.

U.S. District Judge James Peter­son struck down sim­i­lar laws in 2016.

The lib­eral groups that brought that law­suit re­turned to court last month ask­ing Peter­son to throw out the parts of the lame-duck laws that con­flict with his 2016 rul­ing.

Just be­fore he left of­fice this month, Repub­li­can At­tor­ney Gen­eral Brad Schimel asked the court to keep in place the new re­stric­tions on early vot­ing but con­ceded the changes to col­lege IDs and tem­po­rary vot­ing cre­den­tials could not be im­ple­mented be­cause of his 2016 rul­ing.

Re­plac­ing Schimel as at­tor­ney gen­eral is Kaul, who helped bring the orig­i­nal law­suit chal­leng­ing the state’s vot­ing laws as a lawyer for One Wis­con­sin In­sti­tute and Cit­i­zen Ac­tion of Wis­con­sin Ed­u­ca­tion Fund.

He has said the Depart­ment of Jus­tice will con­tinue to han­dle the case, but that he will not per­son­ally be in­volved in de­ci­sions about it.

Kaul has not de­tailed how he is walling him­self off from the case or who the top of­fi­cial work­ing on it will be.

Chal­lenges to lame-duck ses­sion

In the lat­est law­suit, vot­ers and three groups — the League of Women Vot­ers of Wis­con­sin, Dis­abil­ity Rights Wis­con­sin and Black Lead­ers Or­ga­niz­ing for Com­mu­ni­ties — asked Dane County Cir­cuit Judge Stephen Eh­lke to throw out all of the lame-duck laws be­cause they main­tain the leg­isla­tive ses­sion was im­prop­erly con­vened.

In the lat­est law­suit, vot­ers and three groups — the League of Women Vot­ers of Wis­con­sin, Dis­abil­ity Rights Wis­con­sin and Black Lead­ers Or­ga­niz­ing for Com­mu­ni­ties — asked Dane County Cir­cuit Judge Stephen Eh­lke to throw out all of the lame-duck laws be­cause they main­tain the leg­isla­tive ses­sion was im­prop­erly con­vened.

Law­mak­ers passed the laws af­ter call­ing them­selves into what’s known as an ex­tra­or­di­nary ses­sion.

The law­suit con­tends such ses­sions aren’t valid be­cause the state con­sti­tu­tion says the Leg­is­la­ture can meet when called into spe­cial ses­sion by the gov­er­nor or “as pro­vided by law.” Ex­tra­or­di­nary ses­sions are con­ducted un­der leg­isla­tive rules, rather than un­der state statutes.

The non­par­ti­san Wis­con­sin Leg­isla­tive Coun­cil in a memo this month con­cluded the ses­sion was in keep­ing with the state con­sti­tu­tion.

The Leg­is­la­ture sets a sched­ule ev­ery two years that al­lows ex­tra­or­di­nary ses­sions and courts have con­sis­tently ruled that law­mak­ers — not judges — are the ones to de­ter­mine the va­lid­ity of how the Leg­is­la­ture con­ducts its busi­ness, the memo de­ter­mined.

“In ef­fect the Leg­is­la­ture has the abil­ity to be in ses­sion at any time dur­ing the bi­en­nial pe­riod from in­au­gu­ra­tion day to in­au­gu­ra­tion day,” at­ings tor­neys with the agency wrote.

In an­other chal­lenge to how the ses­sion was con­ducted, Rep. Jimmy An­der­son said he would ask Dane County District At­tor­ney Is­mael Ozanne to sue to in­val­i­date the lame-duck laws be­cause Repub­li­can law­mak­ers did not make ac­com­mo­da­tions for his dis­abil­ity.

An­der­son, a Fitch­burg Demo­crat, was par­a­lyzed from the chest down in a 2010 car ac­ci­dent.

He uses a wheel­chair and must be out of the chair for a cer­tain pe­riod ev­ery day. GOP lead­ers could not tell him when the lame-duck votes would be held, and he went home and missed the round of vot­ing that oc­curred with lit­tle no­tice start­ing at 4:30 a.m. on Dec. 5.

An­der­son con­tended Repub­li­cans vi­o­lated the open meet­ings law be­cause he couldn’t be there for the votes. GOP lead­ers said they did not know the specifics of what he needed and would have ac­com­mo­dated him if they had.

If Ozanne does not bring a law­suit, An­der­son will be able to do so on his own.

The state Supreme Court in 2011 ruled that law­mak­ers can eas­ily get around the open meet- law.

That rul­ing was made af­ter Ozanne chal­lenged their abil­ity to hold a com­mit­tee meet­ing with lit­tle no­tice that paved the way for abruptly pass­ing Act 10, which greatly scaled back union bar­gain­ing for pub­lic work­ers.

Oba­macare law­suit con­tin­ues

Wis­con­sin and 19 other states brought a law­suit that re­sulted in a fed­eral judge in­val­i­dat­ing the Af­ford­able Care Act in De­cem­ber.

The health-care law re­mains in place dur­ing ap­peals.

Evers and Kaul cam­paigned on get­ting Wis­con­sin out of the lit­i­ga­tion, but the lame-duck law put law­mak­ers in­stead of the gov­er­nor in charge of that law­suit and oth­ers like it.

Evers said Wed­nes­day he would change Wis­con­sin’s stance, sig­nal­ing he would have Wis­con­sin side with states led by Democrats that in­ter­vened to ar­gue the Af­ford­able Care Act should be up­held.

Vos said Evers should work with leg­is­la­tors on the is­sue in­stead of us­ing “le­gal­is­tic, wig­gly-word type of lan­guage” to try to switch sides.

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